Competitive harm in global supply chains: assessing current responses and identifying potential future responses

Abstract

Global supply (or ‘value’) chains add much to the value of global markets, offering benefits to both producers and consumers. Yet, global supply chains also carry a potential for harm that is often beyond the reach of current legal remedies. They can shield those that produce faulty or hazardous products or artificially raise prices from legal responsibility for the harms they cause to markets, consumers, or the environment. This article focuses on one set of those potential harms—those caused by anti-competitive conduct, but many of the issues also arise in relation to environmental, financial, and other types of harm. Producers anywhere in a chain can impede competition and raise prices for all subsequent purchasers. Such conduct may have effects in many jurisdictions, and its harmful effects are likely to be incurred outside the jurisdiction in which the conduct is located. Few legal tools are available for deterring such harms, and until very recently legal analysts have tended to subsume the issues under existing categories, often failing to notice that these categories and the tools based on them may be inadequate and ineffective in responding to a new organizational form. The inadequacy of the current legal framework calls for efforts to develop more effective tools, both domestic and transnational. This article reviews current responses to the problem and identifies the potential value of transnational coordination as a response.